November 24, 2008

Two D.C. Circuit Judges Skeptical of Releasing Uighurs in U.S.

Two federal appellate judges on a panel today seemed inclined to overturn a district judge’s order that the government release into the United States a group of Uighur detainees at Guantanamo Bay who were once deemed enemy combatants.

Judges Karen LeCraft Henderson and A. Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit appeared sympathetic to argument from Solicitor General Gregory Garre that the government can detain the Uighurs in military confinement pending resettlement. The resettlement effort, Garre said, is “ongoing and active.”

Judge Judith Rogers noted several times that government lawyers failed in district court to introduce evidence supporting the continued detention of the Uighurs, Chinese Muslims who were detained in Afghanistan and have been held at Guantanamo for more than six years. In October, Judge Ricardo Urbina of U.S. District Court for the District of Columbia ordered the government to release the men into the United States.

Government lawyers appealed, and the D.C. Circuit—the same three-judge panel that heard argument today—entered a stay in a 2-1 vote, with Rogers dissenting. Garre argued today that Urbina did not have authority to order the release of an alien into the United States. When Garre delved into national security issues related to the Uighurs, Rogers raised her voice, interrupting Garre. “Counsel, you can’t make that representation on the evidence in the record. Let’s be very careful here before we taint people without evidence.”

The Uighurs, Randolph said, have an opportunity to return to China, but Bingham McCutchen partner P. Sabin Willet, arguing today for the Uighurs, said the men face safety concerns if they are returned there. “That’s the equivalent of putting a bullet in their head,” Willet argued. “The fact is they have no where to go.”

Said Willet: “Our clients are not even warriors. They are civilians. They are not our enemies.” There is nothing about the weapons training the Uighurs undertook that would make them “terrorists,” he said. The same training can be done at any gun range in the metropolitan area, Willet said.

Guantanamo detainees do not have due process rights under the Constitution, Randolph said. An alien cannot be admitted in the United States until proving there is a right to be here, Garre argued. Garre called the Uighur’s situation “regrettable but not unprecedented” and questioned whether the Uighurs would be successful in applying for admission into the United States through immigration laws.